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The Anti-Counterfeiting Trade Agreement (ACTA) was signed yesterday by the European Commission, leading to protests across Europe but especially in Poland where thousands of citizens took to the streets over concerns of online censorship.

Some EU leaders are unhappy as well. Kader Arif, the European Parliament’s rapporteur for ACTA, resigned over the issue on Friday, saying he had witnessed “never-before-seen manoeuveres” by the officials responsible for crafting the treaty.

In a statement, Arif said: “I condemn the whole process which led to the signature of this agreement: no consultation of the civil society, lack of transparency since the beginning of negotiations, repeated delays of the signature of the text without any explanation given, reject of Parliament’s recommendations as given in several resolutions of our assembly.”

22 EU member states including the UK signed the agreement on Thursday, though it still needs to be ratified by the European Parliament before it can be enacted. A June debate has been scheduled before ratification.

US Rep. Darrell Issa (R-CA) a leading opponent of SOPA, has called the agreement more dangerous than the bills stalled in congres.

“As a member of Congress, it’s more dangerous than SOPA,” he said at the World Economic Forum in Davos.

“It’s not coming to me for a vote. It purports that it does not change existing laws. But once implemented, it creates a whole new enforcement system and will virtually tie the hands of Congress to undo it.”

What Does ACTA Mean For The US?

Secrecy has made it difficult for members of the media and citizens and elected officials in participating countries to understand the implications of the agreement. And while some documents have been leaked, the process remains largely opaque.

“Why does ACTA matter to the media and citizens?” writes Alex Howard. “Consider the phrase “intermediary liability.” That’s the principle that websites on the Internet, like YouTube, Internet service providers, web hosting companies or social networks, should not be held liable for the content created or uploaded by their users.”

“The Google Public Policy blog wrote about intermediary liability back in 2007, when India considered changes to its technology laws,” Howard continues. “As Doc Searls described it in his post on the Internet in China, holding content carriers accountable for copyright through intermediary liability can be thought of as a kind of “encirclement.”"

“That’s because,” writes Howard, “as MacKinnon wrote in her article on the Internet “self-discipline”, in China, “all Internet and mobile companies are held responsible for everything their users post, transmit, or search for.”

“In theory, as the ACTA FAQ sheets from Canada state, the treaty is meant to focus on copyright issues, not free speech. In practice, as the EFF makes clear in its ACTA brief, the potential for intermediary liability to be an issue in other countries is a legitimate concern.”

Is Your ISP A Service Provider Or A Policeman?

Basically the threat posed by ACTA is that third parties such as ISPs could be held liable for content of their subscribers that they were not even aware of to begin with. This goes further than copyright infringement, impacting even trademark violations and effectively transforming ISPs into internet police rather than merely internet providers.

“ACTA will require ISPs to police trademarks the way they currently police copyright,” writes Cory Doctorow. “That means that if someone accuses you of violating a trademark with a web-page, blog-post, video, tweet, etc, your ISP will be required to nuke your material without any further proof, or be found to be responsible for any trademark violations along with you. And of course, trademark violations are much harder to verify than copyright violations, since they often hinge on complex, fact-intensive components like tarnishment, dilution and genericization. Meaning that ISPs are that much more likely to simply take all complaints at face-value, leading to even more easy censorship of the Internet with nothing more than a trumped-up trademark claim.”

Again, it’s the broadness of the agreement’s rules that make them so dangerous to online freedom. There is something of an innocent-until-proven-guilty quality baked into the agreement. This is reminiscent of the powers contained in the recently stalled Stop Online Piracy Act (SOPA) which handed the entertainment industry the keys to the city, allowing content creators to effectively police the internet.

Since much of this has been done behind closed doors and since the agreement has been changed numerous times, it’s difficult to get a clear picture of how exactly this will affect US law and US ISPs, but since ACTA is a global agreement and since the internet spans national borders, the impact of the agreement will be felt even if only implemented outside the United States. This could impact citizens and US firms, clamping down on innovation and free speech.

“The agreement is binding from an international law perspective, and the U.S.TR can’t do anything about that. If the U.S. is out of compliance, other countries would have all the usual remedies against the U.S. in international bodies. In U.S. courts, it would not be binding, but only persuasive,” says John Bergmayer, staff attorney at Public Knowledge.

The US signed on to the treaty in October 2011, along with Australia, Canada, Japan, South Korea, Morocco, New Zealand and Singapore. The last hurdle for full implementation of the agreement rests in the hands of the European Parliament this year.

Update: The final draft of ACTA waters the agreement down quite a bit. Many of the concerns over the role of ISPS, for instance, have been cut from the final version. Read more here.

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